IS THERE SUPPORT AFTER DEATH? – Who Can Make a Claim and Powers of the Court – Part V

No review of the area of dependant’s relief is complete without considering the leading Ontario Court of Appeal decision in Cummings v. Cummings (on the application for support, see (2004), 5 E.T.R. (3d) (81) (Ont. S.C) (Cullity, J.); on the appeal to the Ontario Court of Appeal, see (2004) 5 E.T.R. (3d) (97) (Ont. C.A.).

As a result of Cummings v. Cummings, the Court has forced the Estate’s Bar to reconsider matters of support under Part V of the Succession Law Reform Act (“SLRA”).

Historically, claims relating to support of dependants under Part V of the SLRA were a fundamental restriction on testamentary power.

As to the question of the power of the Court itself, section 58 (1) of the SLRA confers on the Court the ability to make an order for support where a deceased has not made adequate provision for the proper support of his/her dependants. In McSween v. McSween ((1985), 21 E.T.R. 195 (Surr.Ct.)), Justice Carnwarth sets out the appropriate guidelines in considering “adequate provision for the proper support of a dependant”.

The case of Cummings v. Cummings was a most difficult one for the judges to determine as the facts were somewhat unusual and were as follows:

Bruce Norman Cummings (the “deceased”) died on June 22 1998, survived by his first wife, Mary Anne, whom he married in 1968, and from whom he was separated in 1986 and from whom he was divorced in 1992.

They had two adult children, Paul, 28, and Elizabeth, 22, both of whom were dependants.

Paul was 24 years of age at his father’s death and was seriously and permanently disabled to the extent that it would take many times the value of all of the assets of the estate, both real and notional (as clawed back pursuant to section 72(1)(d) of the SLRA), to properly support him for the rest of his life. The deceased was under an obligation to provide support by Court order to Paul.

His daughter, Elizabeth, was eighteen years of age at her father’s death and was attending university and was entitled to support under the Court order as well.

The deceased and his second wife, Ruta, commenced living together in 1988 and were married in 1997.

At the time of the divorce from his first wife, the deceased was earning approximately $300,000 per year and his employment was terminated in 1994.

After the termination of his employment, the deceased’s attempts to establish a consulting business for the most part failed, and he fell into arrears of his support payments ordered by the Court.

His second wife, Ruta, paid for a portion of the support order from her own funds, contributed to the payments on the matrimonial home and otherwise contributed financially to the relationship.

The deceased drew a will dated December 15, 1997 and a codicil thereto dated June 2, 1998 naming his second wife, Ruta, as his executor and trustee and providing a $125,000 trust fund for the support of his son and daughter with the remainder to his second wife.

The deceased never denied his obligation to provide support for his children and his will and codicil providing for the trust fund of $125,000 was intended to cover his support obligations to his children, including arrears of support and they were acknowledged to be dependants of the deceased.

An application for additional support from that provided by the will and codicil was brought by the first wife on behalf of her two adult children as dependants of the deceased.

It should be noted that neither the first wife nor the second wife, who were both clearly dependants, made any claim for support.

The first wife brought the matter before the Court on behalf of her son and daughter claiming for dependant’s support pursuant to the provisions of section 58(1) of the SLRA and for arrears of support for the children of the first marriage previously ordered by the Court be paid.

It was agreed that the net total amount available from the testamentary and notional estates for support was $650,000, after deducting all appropriate amounts charged on the testamentary and notional assets clawed back under s.72(1) of the SLRA.

From this amount the learned application judge deducted the value of the matrimonial home, $422,500, which he allowed to remain with the second wife as she had contributed to its value and otherwise contributed to that marriage and the previous common law relationship, with the remainder of $250,000 plus arrears of support in trust for the son and daughter of the first marriage, $10,000 of which was earmarked for the daughter and the rest to the wife in trust for the son.

On our next blog, we will talk about what the Ontario Court of Appeal did in this case.

All the best, Suzana and Ian.